Category Archives: Adapting to Jurors

October 26, 2017

Trial Lawyers, Improve Your Emotional Intelligence (7 Reasons and 3 Ways)

By Dr. Ken Broda-Bahm:

What counts as good legal persuasion differs from one country to the next. Different cultures, different legal rules and systems, and different fact finders all make a difference. But one thing stays consistent no matter the venue or the tongue: Legal persuasion boils down to people using communication to influence other people. That common purpose stands out in a paper released last month for the United Nations International Expert Programme in Investigative and Legal Psychology (Barosa, 2017). The paper is written by a Portuguese criminal lawyer, Pedro Barosa, and provides a literature review and reflections on emotional intelligence, mostly aimed at persuading judges (appropriate to the Portuguese system) but, as he notes, the thoughts are also broadly applicable to persuading anyone.

Mr. Barosa begins with the novel and disarming admission that, throughout his general and legal education, and continuing into his legal practice, he has consistently considered himself to be less cognitively intelligent than most of his peers and adversaries. But despite that, he wins more often than not, based, he believes, on an appreciation and use of emotional intelligence. The concept of “emotional intelligence” has been around for a couple of decades, and it refers to the  ability to perceive, analyze, generate, and use emotional responses. It does not just mean high levels of feelings, it means the ability to reason constructively about feelings. Barosa boils the definition down to three processes: “1) appraising and expressing emotions in the self and others; 2) regulating emotions in the self and others; and 3) using emotions adaptively to achieve one’s goals.” The research shows it to be unrelated to cognitive intelligence, meaning that people may be a genius in reasoning, but still a novice at emotional intelligence. Because law as a profession can self-select for individuals who prioritize logic over emotions, and because effective legal persuasion requires a mix of both, it is worth thinking about. In this post, I will share seven reasons to improve emotional intelligence informed and inspired by Barosa’s essay, as well as three ways to do it.

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October 12, 2017

Expect a (Mostly) Willing Jury

By Dr. Ken Broda-Bahm:

The idea of a reluctant jury — a jury of people who would really like to be just about anywhere else, a jury of people who tried like hell to get out of it and failed — that idea is fairly well ingrained in our system. Among many, especially those who don’t experience the court system on a regular basis, it is considered a truism that most Americans dread jury duty, will try to find a way out of it if they can, and will hate the experience until the end of trial if they can’t get out of it. Certainly there’s plenty of evidence of that reluctance. For example, there are sites that specialize in offering excuses, including an illustrated guide at WikiHow on how to get dismissed from a jury. That whole frame of the reluctant audience can be disconcerting to parties and witnesses. The thought is that not only do you have to persuade people drawn randomly from the community, but you also have to convince a group that really doesn’t want to be there.

Those who do work regularly with juries, I suspect, have enough experience to know that this perceived reluctance is overblown. And there is an important distinction to be made: Jurors don’t hate jury duty, ‘almost-jurors’ hate jury duty. Those who report to the courtroom, watch an orientation video set to bad elevator music, then spend vast amounts of time waiting for something to happen are the ones who resent it the most. And if they’re called into a courtroom, picked over but not picked, then they’re likely to be annoyed that they were forced to surrender their time to what seems like a pointless exercise. Those who make it, on the other hand, are not just willing to do it, more often than not, they’re actually interested and excited about it. For many of them, it is probably the greatest social responsibility they’ve had, apart from raising their kids. Recent research backs up that jury duty isn’t nearly as negative as one might think. In this post, I’ll briefly share that research as well as some thoughts on leveraging that interest and addressing the reluctance that remains.

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September 28, 2017

Know Your Audience: Trix Are for Kids (Who Don’t Care About Artificial Colors)

By Dr. Ken Broda-Bahm:

You’re forgiven if you didn’t notice, but for the past couple of years, the General Mills cereal called “Trix” has been available only in a “heathier” version. That means that it kept all the sugar, but lost the artificial coloring, using vegetable and fruit ingredients instead. Apparently, there are some fans of the cereal who are old enough to send emails and post to social media, and those Trix fans complained that the new colors are dull or missing (nature apparently couldn’t replicate the blue or the green in Trix, so those colors were pulled from the new version). Finally giving in to the complaints, General Mills announced last week that they would reintroduce the old bright but artificially-colored version, and even follow the Coca-Cola route of calling it “Trix Classic.”

All of this is detailed in a recent story in The Washington Post, and serves as a cautionary tale of audience analysis. With more than half of Americans wanting fewer artificial ingredients, one might think that moving to a more natural version of Trix was a solid business move. However, this is a case of what is true of the aggregate not being true of the subset. Bottom line, it turns out that if you are one of those who care about artificial ingredients, then you’re probably not one of those eating Trix in the first place. It seems simple when you consider it that way, but the mistake of misjudging the audience and, more specifically, imputing the general to the particular, is a mistake that can be made in litigation as well. Without being conscious of it, lawyers might also be strategizing and speaking to what may be generally true, but not necessarily true in the specific audience. In this post, I’ll share an applicable rhetorical concept, the Universal Audience, and share some thoughts on ways litigators can avoid the assumption that what’s true of the many is also true of the few.

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September 14, 2017

Adapt to Information Engagement Styles

By Dr. Ken Broda-Bahm:

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You’ve probably heard the expression, “Minds are like parachutes: They only function when they’re open.” That is undoubtedly true for some people. And if you’re one of the curious regular readers of this blog, then that is probably true for you. But it isn’t true for others. Their minds don’t function best when open. Instead, a certain amount of purposeful closed-mindedness is necessary for them to feel certain, grounded, and safe. Looking out at an audience while you are trying to persuade them to set aside a current belief and adopt something new, it is tempting to think that there are just two kinds out there: Those who are open and those who are dug in. Or we might further reduce that to those who are smart and those who aren’t. But it is more nuanced than that.

For example, a piece the other day from Pew Research Center, simply titled, “How People Approach Facts and Information,” uses survey data to identify some important individual differences. “Some are interested and engaged with information,” they write, while “others are wary and stressed.” As a step in analyzing an audience, it is a useful question: How do they handle new information? Some will go after it, test its reliability, select what’s best, and ultimately adapt a new belief. Others will try to avoid what’s new, or will be automatically skeptical of anything they don’t already take to be true. It is not just knowledge that separates these groups, it is mostly attitude. Referring to this as the dimension of “information engagement,” Pew identifies a typology of five distinct groups. Using national survey data along with statistical cluster analysis, the research organization discovered that people split along the themes of trust versus skepticism and interest versus disengagement, and are grouped into not two but five groups, no one of which could be called “typical.” In this post, I’ll take a look at the five different groups and share some thoughts on ways attorneys can diagnose and adapt to the information engagement styles of their audiences.  Continue reading

August 28, 2017

Don’t Expect Better Memory from a Jury

By Dr. Ken Broda-Bahm:

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It is conversation I frequently have when sending jurors off to deliberate as part of a mock trial.

“Can we ask the attorneys questions about the case?”

“No, just do your best with what you remember.”

“But what if there are things we forget?”

Don’t worry, as a group you’re going to remember more than you would as individuals.”

That seems like it would be true, right? A group should have a stronger collective memory, operating as a sum of the individual recollections within the group. That is part of the reason why the legal system in this case opts for group rather than individual decision-making. But what if it turns out that this isn’t true? Continue reading

August 24, 2017

Expect a Majority of Your Jurors to Commit Online Misconduct

By Dr. Ken Broda-Bahm:

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You know it is possible. As those jurors leave the courtroom with their mobile phones on a break or at the end of the day: They could be off on their own evidence-gathering foray, looking up the parties, the lawyers, the witnesses, or the law. But, they’ve been given strong instructions in a very formal courtroom, and the judge has told them not only that is it strictly forbidden, but that it could also cause a mistrial leading to additional wasted time and money for the parties and for the public. With all of that, you might think that the act of a juror violating their instructions in order to willfully pursue their own investigation online would be the relatively rare act of an uninformed or reckless juror. If you thought that, you would be wrong. Based on a new survey, jurors committing online misconduct would seem to be the norm and not the exception.

In a blog article published earlier this month, “Juror Misconduct: More Prevalent Than We Think,” Dr. Marlee Kind Dillon, a consultant for the Long Island based Jury Consulting group DOAR, reports on the company’s own investigation of the likelihood of various forms of unauthorized communication. Not trusting some of the previous surveys administered in court and showing a relatively light incidence of such misconduct, the DOAR team conducted their own anonymous online survey focusing on whether jurors engage in online research, post about a case, discuss it with family or friends during trial, or with other jurors before deliberations. They found that online research outstrips the other forms of misconduct to the point that it actually reaches a majority: 56 percent indicated that, yes, they had conducted online research on issues relating to their trial while serving as a juror. This online misconduct exceeds the more conventional methods, but discussing with family and friends is still very substantial, with 42 percent admitting that they did it. Dr. Dillon’s article includes a lot of interesting detail regarding who searches about what and why. It’s a detailed and smartly illustrated article, and I’d encourage you to read the original. But in this post, I am going to bullet out what I see as the three main implications.   Continue reading

August 14, 2017

Focus on the Factors that Actually Change Minds

By Dr. Ken Broda-Bahm:

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If you’ve ever suffered through an extended interpersonal argument, either as a protagonist or as an observer, you might be justifiably skeptical about its usefulness. The common experience is that no one is going to budge. I’ve been there as well, and that is why I was intrigued when reading a study that I recently came across on effective argument. “One might think that the the outcome is trivially ‘no one ever changes their mind,’ since people can be amazingly resistant to evidence contravening their beliefs,” the authors wrote in the first footnote, “But take heart, change does occur, as we shall show.” The study (Tan et al., 2016) further piqued my curiosity when I looked at the methodology. The authors focus on social media, taking advantage of the opportunity to observe attempts at interpersonal persuasion on a large scale. They looked at the social media platform Reddit, and specifically a community called “ChangeMyView,” a group that boasted more than 211,000 members as of the article’s publication date. At “ChangeMyView,” the goal is for people to take a position, state their reasoning, invite counterarguments, and then indicate if their minds have been changed or not. As a condition of entry, users “accept that they may be wrong or want help changing their view” (a position that is admirable in its intellectual humility). Looking at all discussions occurring within that community during a four-month period, the team was able to quantify the language factors that successfully predicted attitude change.

It is not surprising that most of the time, 70 percent of the time actually, people stuck with their original beliefs. But that leaves the 30 percent, and within that slice, the authors found a high ability to predict argument effectiveness. “Persuasive arguments,” they conclude, “are characterized by interesting patterns of interation dynamics.” Naturally, the setting within this Reddit community is different than the settings for legal persuasion. For one, people join by choice and announce their willingness to be persuaded. In addition, the argument is an interactive conversation with an active opportunity to review and rebut the written arguments coming from one’s adversaries. But the research is still interesting in focusing on the human nature to resist, and to sometimes accept, a contrary message. If there are verbal tactics that work in an online setting, they are worth at least considering in a courtroom context. In this post, I will focus on the top implications that stood out to me when I reviewed the study. Here are 10 features of an argument that tend to make it more likely to lead to genuine attitude change.  Continue reading

August 7, 2017

Prepare for your Post-Fact Jury: Top Posts

By Dr. Ken Broda-Bahm:

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The news cycle these days seems to be dedicated to keeping the question front and center: “Are we as a society losing our grip on facts?” And if we are, I’d add a complementary question, “What does this say to legal persuaders?” An article at the end of last year appeared in Law 36o written by trial consultant, Ross Laguzza, citing data from his own company to support the view that jurors may be on their way to becoming more fact-resistant. For example, 54 percent say “Beliefs guide my life,” as opposed to 46 percent who say “Facts guide my life,” and fully 58 percent agree with the statement, “If you feel really strongly about something you don’t need facts to prove you are right,” with two-thirds of those agreeing say they “strongly” agree. This creates the possibility of a declining reliance on external sources for validity. In deciding whether a drug is safe or unsafe, for instance, 60 percent would go with the opinions of patients rather than the opinions of doctors and scientists.  Continue reading

July 27, 2017

Consider What Drives Resistance to Your Message

by Dr. Ken Broda-Bahm:

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Having assisted on a large number of jury selections, I know there are a few attorneys who will say, “Give me the dumb ones — I’ll tell them what to think.” But by and large, the attorneys have what I call an “intelligence bias.” That is, they think that their side of the case is essentially correct (because that is what advocates do), so they think the smarter jurors will understand that. But that can’t always be right — especially when that bias exists for both sides. Based on a research article in Political Psychology, there seems to be a lot more complexity to the question of whether the intelligent are going to be good or bad in any given case. Looking at a close cousin and companion of intelligence, sophistication, the study (Nai, Schemeil & Marie, 2016) looks at how that plays off against resistance to persuasion.

The researchers measured the political sophistication of 604 research participants, then asked their views on climate change. Specifically, they asked whether they supported a reduction in economic activity in order to reduce global warming. After they answered, they were exposed to arguments designed to refute whatever position they had just taken to see how much they could be persuaded. They also tested the role of induced anxiety (a fear appeal) as part of this process. The result? Sophistication has an effect, with higher sophistication translating into greater resistance to persuasion. Anxiety also had an effect, with higher anxiety meaning less resistance to persuasion. But the most interesting finding was an interaction between sophistication and anxiety. For those higher in sophistication, those who would otherwise be more resistant to persuasion, anxiety decreased resistance. In other words, expect the sophisticates on your jury to resist changing their minds, unless they’re scared. That adds some nuance to the basic question of liking or hating intelligent people, and suggests a more careful look at what drives resistance.  Continue reading

July 20, 2017

Compensate for Dry Style or Dry Material: Seven Ways

By Dr. Ken Broda-Bahm:

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Imagine this: Your success as an attorney or a witness requires a painstaking dig into the fine points of securities trading. Or offshore corporation taxation rules. Or design criteria for inventory-tracking software. Or the minutia of a construction timeline. Or a patent claim for an electronic switch. Or…you get the idea. Legal cases aren’t always celebrity murders or dramatic injury stories. Often, the case itself is dry and requires jurors to attend to details that are abstract, technical, and quite divorced from their daily lives.

Alternately, imagine this: Even when the material itself holds some potential appeal, the witness or the lawyer delivering it does not. They might have a flat and monotone voice, and a lack of emphasis, emotion, or dynamism. That dry style carries the likelihood of turning information that is at least potentially interesting into information that is a chore to follow and to digest.

The question is what to do about it. There are limits to how much you can change the nature of the case. Even with selective emphasis on the most interesting parts, a case is going to have its dry moments. And if an attorney or witness has a somewhat restricted range of communication, then there is a limit to how much that person can change their own style without looking and feeling artificial. The answer is to find a way to compensate. In this post, I’ll share seven ways to add interest when the details or the delivery of those details would otherwise be dry.   Continue reading

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